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Friday, March 16, 2018

Section 205 Cr.P.C.- exemption from personal appearance from date to date attendance before trial court - distance between residence of the accused and the place of trial at Patna is 1750 kms. It was further stated that appellant No.3, Ashok Kumar Yadav was a business man and running Company in Pune and appellant No.4 was a student of BCA in Pune. Taking into consideration the entire facts and circumstances and the grounds taken by the appellants in their application under Section 205 Cr.P.C. as well as in the application under Section 482 Cr.P.C. filed before the High Court, we are of the view that sufficient grounds were made out for granting exemption from personal appearance of the appellants in the trial. The Magistrate committed error in not adverting to the grounds taken for praying the exemption and rejected the application on the reasons which were unfounded.

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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.387 OF 2018
(arising out of SLP(Crl.)No.6786 of 2017)
SRI RAMESHWAR YADAV & ORS. ... APPELLANTS
VERSUS
TEH STATE OF BIHAR & ANR. ... RESPONDENTS
J U D G M E N T
ASHOK BHUSHAN, J.
This appeal has been filed against the
judgment dated 17.04.2017 of the Patna High
Court by which judgment application filed by
the accused-appellants under Section 482 of the
Code of Criminal Procedure challenging the
order dated 13.08.2013 passed by the SubDivisional
Judicial Magistrate, Patna has been
dismissed by the High Court.
2. Brief facts necessary to be noted for
deciding the appeal are:
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The second respondent filed a complaint in
the Court of Sub-Divisional Judicial
Magistrate, Patna alleging offence committed by
the accused as well as Arnesh Kumar, her
husband. The Magistrate vide order dated
11.10.2012 finding a prima facie case under
Section 498A and Section 4 of the Dowry
Prohibition Act summoned the accused as well as
Arnesh Kumar, husband of the complainant. The
accused as well as Arnesh Kumar filed an
application for anticipatory bail during the
pendency of the said application. Non-bailable
warrants were issued by the Magistrate on
23.12.2012. All the accused that is appellants
as well as Arnesh Kumar filed an application
dated 17.01.2013 praying for recall of nonbailable
warrant and dispensing with their
physical appearance in the case. It was
appellants’ case that said application was
filed because appellant No.1, father of Arnesh
Kumar is a retired Army Official residing in
Pune with appellant No.2 and other appellants
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were also residents of Pune, Maharashtra and
they have to come from a distance. It was
prayed by the accused that they be exempted
from the personal appearance in the case. All
the accused except Arnesh Kumar, husband of
complainant were granted anticipatory bail.
Anticipatory bail was granted by the District
and Sessions Judge, Patna on 21.06.2013 to all
the accused except Arnesh Kumar, husband of the
complainant. The Sub-Divisional Magistrate by
order dated 13.08.2013 rejected the application
filed by the accused under Section 205 Cr.P.C.
3. While rejecting the application on
13.08.2013, the Magistrate gave the following
reasons:
(i) Petitioners appear to be hale and
hearty and are not suffering from any
type of disease which may be impediment
in appearing before the court.
(ii) Nature of offences requires that
accused-petitioners and also the
complainant should be present before the
court preferably on each and every date
expecting good sense prevails upon them.
(iii) Their appearance is also
desirable for the purpose of
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conciliation since the very enactment of
Section 498A of IPC and Dowry
Prohibition Act primarily meant for
restoration of conjugal harmony.
4. Challenging the order dated 13.08.2013, an
application under Section 482 Cr.P.C. was filed
which has been dismissed by the Patna High
Court. The High Court dismissed the application
taking a new ground that a prayer for exemption
from personal appearance under Section 205
Cr.P.C. can only be made at the stage of first
appearance of the accused. Once the accused
appears before the court in person without
making any application for dispensing with the
personal appearance under Section 205 Cr.P.C.,
at a subsequent stage, such an application
would not be maintainable. Aggrieved by the
said order this appeal has been filed.
5. We have considered the submissions of the
learned counsel for the parties and perused the
records.
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6. Section 205 Cr.P.C. and Section 317
Cr.P.C. which are relevant in this case are
extracted:
“Section 205. Magistrate may
dispense with personal attendance of
accused.— (1) Whenever a
Magistrate issues a summons, he may,
if he sees reason so to do, dispense
with the personal attendance of the
accused and permit him to appear by
his pleader.
(2) But the Magistrate inquiring
into or trying the case may, in his
discretion, at any stage of the
proceedings, direct the personal
attendance of the accused, and, if
necessary, enforce such attendance
in the manner hereinbefore provided.
317. Provision for inquiries and
trial being held in the absence of
accused in certain cases.—(1) At any
stage of an inquiry or trial under
this Code, if the Judge or
Magistrate is satisfied, for reasons
to be recorded, that the personal
attendance of the accused before the
Court is not necessary in the
interests of justice, or that the
accused persistently disturbs the
proceedings in Court, the Judge or
Magistrate may, if the accused is
represented by a pleader, dispense
with his attendance and proceed with
such inquiry or trial in his
absence, and may, at any subsequent
stage of the proceedings, direct the
personal attendance of such accused.
(2) If the accused in any such case
is not represented by a pleader, or
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if the Judge or Magistrate considers
his personal attendance necessary,
he may, if he thinks fit and for
reasons to be recorded by him,
either adjourn such inquiry or
trial, or order that the case of
such accused be taken up or tried
separately.”
7. The Magistrate has rejected the application
filed under Section 205 Cr.P.C. on different
grounds as noticed above. The High Court took
entirely new grounds for dismissing the
application filed under Section 482 Cr.P.C.
without adverting to the grounds which were
taken by the Magistrate for declining the
prayer.
8. We first take up the grounds given by the
High Court for rejecting the application. The
High Court has observed that prayer for
exemption from personal appearance under
Section 205 Cr.P.C. can only be made at the
stage of first appearance of the accused and
once the accused appears before the court in
person without making any application for
dispensing with the personal appearance under
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Section 205 Cr.P.C. at a subsequent stage, such
an application would not be maintainable.
9. The High Court has noticed that the
accused had already appeared after obtaining
the order of pre-arrest bail and furnishing
bond and sureties to the satisfaction of the
court. The pre-arrest bail was granted to the
accused by the District and Sessions Judge by
order dated 21.06.2013 and thereafter the
accused appeared before the court as has been
noticed in paragraph 8 of the judgment of the
High court itself.
10. The observation of the High Court that the
accused has filed application under Section 205
Cr.P.C. at a subsequent stage after appearing
before the court is factually incorrect. The
application was filed by the accused under
Section 205 Cr.P.C. on 17.01.2013. Thus, the
application under Section 205 Cr.P.C. was filed
prior to the appearance in the court and the
same would have very well been considered by
the Magistrate despite their appearance in the
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court after obtaining the pre-arrest bail. The
grant of exemption from personal appearance in
the court on each and every date was required
to be considered in view of the fact that
application was filed on 17.01.2013 much before
their appearance in the court. Further, the
Magistrate had not rejected the application on
the ground that application is not
entertainable after appearance of the accused
before the court. We, thus, are of the view
that aforesaid ground given by the High Court
for rejecting the application is unfounded.
There is one more reason due to which the High
Court’s order cannot be sustained.
11. The High Court in its order observed that
there is another provision that is Section 317
Cr.P.C. which gives discretion to the court to
exempt a person from personal appearance. The
High Court observed that the remedy available
to the accused was under Section 317 Cr.P.C.
and not under Section 205 Cr.P.C. Section 317
Cr.P.C. which empowers the Magistrate, at any
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stage of inquiry or trial for reasons to be
recorded to exempt attendance of the accused.
The Magistrate was not powerless to consider
the prayer under Section 317 Cr.P.C. as per the
view taken by the High Court. Thus, we do not
find any impediment in the power of the
Magistrate to consider the application of
accused for their exemption from personal
appearance.
12. Now, we advert to the reasons given by the
Magistrate for rejecting the application. As
noticed above, first reason given by the
Magistrate is that all the accused appear hale
and hearty and there is no suffering from any
type of disease which may be impediment in
appearing before the court. Application was not
filed by the accused on the ground that they
suffer from any physical illness and hence the
said reason given by the Magistrate is wholly
out of place. The second reason is that accused
and complainant should be present before the
court on each and every date expecting good
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sense prevail between them. We fail to see this
as any valid ground for not considering actual
grounds given by the accused for seeking
exemption. Third ground given was regarding
conciliation which requires the appearance of
the accused desirable.
13. With regard to this ground it is sufficient
to notice that application under Section 482
Cr.P.C. was not filed by the husband, Arnesh
Kumar whose pre-arrest bail was already
rejected. The present appellants, thus, were
not pressing application under Section 482
Cr.P.C. for Arnesh Kumar, the husband who could
have very well participated in the proceedings.
Thus, the above ground was also not available
for rejection of the application. In the
application the grounds which were given by the
appellants was that, appellant No.1 father of
Arnesh Kumar is retired Army personnel and
residing in Pune with his wife that is
appellant No.2. Appellant Nos.3 and 4 were also
residing at Pune. Arnesh Kumar, the husband was
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working at Hyderabad. The Magistrate has not
considered the grounds which were taken by the
appellants for seeking exemption. It was on the
record before the High Court that distancebetween residence of the accused and the placeof trial at Patna is 1750 kms. It was furtherstated that appellant No.3, Ashok Kumar Yadavwas a business man and running Company in Puneand appellant No.4 was a student of BCA inPune. Taking into consideration the entirefacts and circumstances and the grounds takenby the appellants in their application underSection 205 Cr.P.C. as well as in theapplication under Section 482 Cr.P.C. filedbefore the High Court, we are of the view thatsufficient grounds were made out for grantingexemption from personal appearance of theappellants in the trial. The Magistratecommitted error in not adverting to the groundstaken for praying the exemption and rejectedthe application on the reasons which wereunfounded. The Magistrate under Section 205
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sub-Section (2) Cr.P.C. is empowered at any
stage to direct personal appearance of the
accused hence as and when personal appearance
of the accused is required the Magistrate is
empowered to issue necessary orders if so
decides.
14. In the result, the appeal is allowed, thejudgment and order of the High Court dated17.04.2017 as well as order of the SubDivisionalJudicial Magistrate dated 13.08.2013are set aside, application filed by theappellants under Section 205 Cr.P.C. isallowed. The personal appearance of theappellants is exempted. This, however, shallnot preclude the Magistrate to pass appropriateorders under Section 205(2) Cr.P.C. if and whenpersonal appearance of the appellants isrequired.
..........................J.
( A.K. SIKRI )
..........................J.
NEW DELHI, ( ASHOK BHUSHAN )
MARCH 16, 2018.